scholarly journals The idea of promotional compromise in the termination of criminal persecution and exemption from the criminal responsibility of the minor personnel with the application of forcedive measurement measures

2020 ◽  
Vol 6 (3) ◽  
pp. 168-173
Author(s):  
Alexander G. Markelov
Keyword(s):  
Russian Federation ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Final Decision ◽  
Criminal Process ◽  
The Russian Federation ◽  
A Minor

The article proposes an original approach explaining the obvious ideological nature of the existence in the Russian criminal process of an evidentiary compromise with a special procedure for stopping criminal prosecution and exempting a minor from criminal liability using coercive educational measures. The author rightly argues that in modern criminal proceedings there has been created a promising, at the same time, conflict-free criminal procedure form of resolving a criminal case on the merits. In particular, the legislator, with strict and strict observance of the principles of the criminal process, formed a special compromise and at the same time evidentiary procedure for the court to make a final decision on the criminal case in the form of termination of criminal prosecution and exemption from criminal liability of a minor with the use of compulsory educational measures. The work concludes on the unconditional effectiveness of this compromise order, as well as the need to further improve such alternative evidentiary proceedings in order to promptly resolve the criminal case and implement the purpose of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation.

THE IDEA OF COMPROMISE IN THE RUSSIAN CRIMINAL PROCESS AS A MEANING OF COURT ACTIVITY OF CRIME

2021 ◽  
pp. 48-59
Author(s):  
Alexander G. Markelov ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Final Decision ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
The Individual

The article proposes an original approach that explains the obvious ideological nature of the use of compromise technologies on certain alternative procedures of the Russian criminal process and is considered as an applied tool for combating crime. Such proposals occur against the background of an obvious trend of humanization of punishment and exemption from criminal responsibility of certain categories of persons. The author claims justifiably that new prospectiveand at the same time conflict-free (compromise) forms of criminal procedure for the rapid resolution of criminal cases have been created in the Russian criminal process.At the same time, the author believes that one of the most important advantages of the use of compromise technologies, provided that there are no aggravating circumstances, is the ability to resolve the criminal-law conflict between the parties concerned quickly and create a favorable environment of reciprocity and understanding. The author believes that the idea of compromise as a certain measure of combating crime has already been implemented in modern procedural algorithms for resolving criminal cases through reduced criminal proceedings in the form of an inquiry, specific (compromise) proce-dures in the form of: the court making a final decision on a criminal case with the consent of the accused with the charge brought by the investigating authorities; the court making a final decision on a criminal case when concluding a pre-trial agreement on cooperation (a deal with justice); proceedings in a criminal case on the appointment of criminal-law measures in the form of a court fine when a person is exempt from criminal liability; a termination of the criminal case and criminal prosecution against the suspect or accused in conjunction with the reconciliation of the parties, a termination of criminal prosecution against the suspect or accused in conjunction with active repentance, a termination of criminal prosecution against the suspect or accused in cases of crimes in the field of economic activity, the election of certain preventive measures and the conduct of the individual investigative actions under the individual compromise circumstances. The author believes that the construction of a legal model of criminal procedure compro-mise as a measure to counter modern crime will contribute to the optimization of the Russian criminal proceedings in the interests of the individual, society and the state as a whole. The work proposes the justification of a new scientific direction - the criminal procedure concept of using compromise - and the prospects for its application in scientific research and practical activities to counter modern crime.

scholarly journals Meaning of the Category “Validity of the Charge” in Criminal Proceedings

2021 ◽  
pp. 218-223
Author(s):  
Oksana V. Kachalova ◽  
◽  
Viкtor I. Kachalov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Sufficient Evidence ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Simplified Procedure ◽  
Special Order

The aim of the article is to identify the meaning of the category “validity of the charge” in criminal proceedings and the scope of its application. After analyzing the content and legal essence of this category, as well as procedural situations in which it is necessary to establish the validity of the charge, the authors come to the following conclusions. Any coercive measures against suspects and accused persons can be applied only if there are serious grounds to assume that a person is involved in the commission of a crime since the restriction of the most important constitutional rights of citizens who, by virtue of the presumption of innocence, are innocent of committing a crime is possible only in exceptional cases. The validity of the charge (suspicion) assumes that a person is involved in the commission of a crime, as well as the fact of the criminal prosecution of this person. It is established if there is sufficient evidence that a person may have committed a crime (a person was caught committing a crime or immediately after it was committed; the victim or witnesses identified the person as the perpetrator of the crime; obvious traces of the crime were found on the person or their clothing, with them or in their house, etc.). The validity of the charge may be confirmed by a decision to initiate a criminal case and bring a person as an accused, by protocols of detention, interrogations of the accused, the victim, witnesses, and other materials. In the procedural sense, the conditions for establishing the validity of the charge differ significantly. When resolving the issue of the use of detention and other preventive measures, the validity of the charge is established within the framework of a court session in the conditions of adversariality with the participation of the parties. When giving the court permission to conduct investigative and other procedural actions in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, to ensure the secrecy of the investigation, the issue is resolved in the absence of adversariality with the possible participation of only the prosecutor, the investigator, and the inquirer. The category “validity of the charge” is significant in legal terms in a criminal case with the special order of proceedings. A prerequisite for the court to consider a criminal case in a simplified procedure is the validity of the charge and its confirmation by the evidence collected in the case. The validity of the charge in the appointment of a trial in the special order provided for by Chapter 40 of the Criminal Procedure Code of the Russian Federation is established by the court outside the court session in the absence of the parties. In any of the above situations, the court is responsible for establishing the validity of the charge since failure to establish it means that the decision made is unfounded.

scholarly journals Draft Law on Criminal Misconduct given the German Experience of Legal Regulation

Lex Russica ◽  
2021 ◽  
pp. 133-141
Author(s):  
Ya. M. Ploshkina ◽  
L. V. Mayorova
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Offense ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.

scholarly journals Criminal Liability for Knowingly Unlawful Sentence, Decision or Other Judicial Act

2020 ◽  
Vol 17 (3) ◽  
pp. 93-102
Author(s):  
Pavel Metelsky ◽  
Nadezhda Verchenko
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Prosecution ◽  
The Public ◽  
History Of ◽  
The Subject ◽  
The Russian Federation ◽  
Considerable Complexity

Introduction. The publication is devoted to the corpus delicti, provided for by Art. 305 of the Criminal Code of the Russian Federation, which, being, in fact, a special type of official abuse, stands out as the direct object of a criminal assault and a special subject, since it can be committed exclusively by professional judges. The main features of the objective and subjective parties, qualifying signs of the offense are revealed, some problems that arise when applying this criminal law are outlined. Purpose. The goal is to analyze the design features of the crime and issues that arise when applying this rule. Methodology. The method of a formal legal analysis of the norms of the criminal law and theoretical provisions on problems directly related to the application of this rule was used. Results. The public danger of a criminal act that undermines the very foundations of justice is obvious, in connection with which it stands out as an independent crime by all the Russian Criminal Codes, starting in 1922, the history of criminal responsibility for its commission can be traced in our country in general since the 16th century. The current criminal law prohibition is characterized by considerable complexity, due to both the blanket nature of the disposition of the norm itself and the presence of discrepancies in the understanding of the signs embodied in it. Conclusion. The implementation of criminal liability for this crime involves the establishment of not only circumstances directly related to the corpus delicti that lie in the criminal law field. The subject of an infringement, a judicial act, must be subjected to procedural review without fail, after which, subject to the consent of the Higher Qualification Collegium of Judges of the Russian Federation, in fact, and the mechanism of criminal prosecution is “launched”. That is, a truly “multi-way” combination of actions is necessary, carried out in several stages, and the problem itself to some extent becomes interdisciplinary, going beyond only criminal law.

scholarly journals Discussion issues of the relationship between criminal responsibility and bringing a person as an accused (part 1)

2021 ◽  
pp. 79-84
Author(s):  
Maksim Lapatnikov ◽  
Nikolay Letelkin
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Scientific Article ◽  
Procedure Code ◽  
The Russian Federation ◽  
Adversarial Model ◽  
The Relationship

The issues of determining the essence of criminal liability as a central category of criminal law, its foundations, moments of emergence and termination are traditionally in the focus of legal science. But no less acute, it seems, is the question of the relationship between prosecution as an accused and criminal liability, as well as, in general, an analysis of the very concept of “bringing to criminal liability”. Addressing this topic, the presentation is relevant and necessary in order to analyze the theoretical and normative ideas about the above phenomena in the context of an adversarial model of justice, to which, based on federal sources (part 3 of article 123 of the Constitution of the Russian Federation; article 15 of the Criminal procedure code the Russian Federation is striving for our country The presented scientific article is the first part of the author’s research on this topic.

scholarly journals Termination of a criminal case (criminal prosecution) as a result of voluntary compensation for damage caused by a crime in the russian criminal court legal proceedings

2021 ◽  
Vol 7 (3B) ◽  
pp. 645-651
Author(s):  
Artem Igorevich Neryakhin ◽  
Dmitriy Aleksandrovich Ivanov ◽  
Vasily Dzhonovich Potapov ◽  
Denis N. Stacyuk ◽  
Tatiana Ivanovna Bondar
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Preliminary Investigation ◽  
Criminal Code ◽  
Criminal Court ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Russian Federation ◽  
Compensation For Damage

The authors study the controversial issues of termination of a criminal case (criminal prosecution) on the condition of voluntary compensation for the damage caused by the crime by the suspect (accused) during the preliminary investigation. The thesis is proved that in Russian criminal proceedings the procedure for voluntary compensation for damage caused by a crime is quite clearly regulated, and if the suspect (accused) voluntarily compensated for the property damage caused, then their actions will be evaluated within the current legal framework, when the fact of compensation for damage creates grounds for exemption from criminal liability and termination of the criminal case (criminal prosecution) in accordance with Articles 75, 76, 761, 762 of the Criminal Code of the Russian Federation, Articles 25, 251, 28, 281 of the Criminal Procedure Code of the Russian Federation.

The Main Signs of the Duality of the Specialist Position in Criminal Proceedings

Lex Russica ◽  
2021 ◽  
Vol 74 (10) ◽  
pp. 59-74
Author(s):  
L. K. Bondarenko
Keyword(s):  
Russian Federation ◽  
Semantic Analysis ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Main Research ◽  
Special Knowledge ◽  
The Russian Federation

The author examines the problem of the special knowledge functioning in criminal proceedings. By synchronizing the institutions of the criminal procedure that regulate the legal relationship between the knowledgeable persons and the institution of criminal law regulating the responsibility of these participants in the commission of a crime against justice, the author demonstartes asymmetry between the rights and duties of a specialist. The subject of the study is constituted by the contradictions between the institutions of procedural and substantive law, namely, the discrepancy between the procedural complex (rights, duties, functions) of a specialist to the course of his criminal responsibility. For this purpose, a comparison is made between the rights and obligations of knowledgeable persons, based on the criteria of: a) the scope of procedural functions; b) the specificity of procedural rights and obligations; c) actual forms of special knowledge acceptable as evidence. On the basis of the revealed contradictions, the situation of competitiveness of special knowledge is investigated; the legal significance of the forms of special knowledge is determined. The author proposes a systematic solution, namely: 1) to clarify the procedural status of a specialist: to add the definition of “forensic specialist” to Art. 58, 61, 71, 74, 80, part 4 of Art. 164, art. 168, 251, 270, 271 of the Code of Criminal Procedure of the Russian Federation; 2) to clarify the epistemological aspects of the research functions of a specialist in accordance with Part 3.1 of Art. 74, art. 80; Part 1.2 of Art. 144 of the Code of Criminal Procedure of the Russian Federation; 3) to establish a mechanism for the responsibility of a specialist for giving a deliberately false opinion: to add to Art. 58 of the Criminal Procedure Code of the Russian Federation, part 5 by analogy with part 5 of Art. 57 of the Code of Criminal Procedure of the Russian Federation; to supplement the text of Part 1 of Art. 144 of the Code of Criminal Procedure of the Russian Federation; to correct the content of Art. 307 of the Criminal Code of the Russian Federation. Or release the specialist from criminal liability for the opinion expressed by him (even if it is deliberately false). The author proves that the proposed measures will promote adversarial evidence, increase the specialist’s subjective responsibility for the conclusion given by him, which corresponds to the institution of proving.The main research methods are: general scientific methods, review and analysis of legislative sources, contextual method, semantic analysis and formal logical analysis.

scholarly journals On the problem of establishing a condition for compensation for damage and making amends for damage when a criminal case (criminal prosecution) is terminated in connection with the appointment of a criminal law measure in the form of a court fine

2021 ◽  
Vol 4 ◽  
pp. 129-134
Author(s):  
I.V. Fatyanov ◽  
Keyword(s):  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Compensation For Damage

The article examines the ambiguity in the interpretation of article 76.2 of the Criminal code and article 25.1 of the Criminal procedure code of the Russian Federation to establish terms of compensation for the damage and (or) smoothing caused by the crime harm. The author substantiates the argument about the fallacy of considering this condition only formally, the author focuses on the mandatory establishment in this case of the characteristics of the identity of the guilty person and the measure of public danger of the committed act. The scientific novelty of the article lies in the approach proposed by the author to the study of the problem of establishing such a condition. In particular, the author considers it essential to solve such a problem to study the legal nature of compensation for damage and compensation for damage when a criminal case (criminal prosecution) is terminated on this basis. The author defines the specifics, identifies the main purposes of such a legal phenomenon in the context of a legal problem. The article concludes that if the preliminary investigation body and (or) the court (justice of the peace) the lack of property harmful consequences from the crime, the failure to make reparation is not to be considered as an obstacle to the termination of criminal proceedings on the grounds provided by article 25.1 of the Criminal procedure code of the Russian Federation, article 76.2 of the Criminal code of the Russian Federation. As a conclusion, the scientific work has prepared a specific text of the interpretation of the condition in the relevant explanations of the Supreme Court of the Russian Federation, which will exclude ambiguity on this issue from the law enforcement officer.

scholarly journals The Identification of Close Relatives of the Deceased Suspect or Accused in Criminal Proceedings: the Problems of the Legal Regulation and Interaction

Legal Concept ◽  
2021 ◽  
pp. 90-99
Author(s):  
Kristina Trifonova ◽  
Mikhail Shmatov ◽  
Vadim Perekrestov
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
The Body ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Deceased Person ◽  
The Russian Federation ◽  
Close Relatives

Introduction: the termination of a criminal case or refusal to initiate a criminal case on a non-rehabilitative basis, provided for in paragraph 4, part 1, Article 24 of the Code of Criminal Procedure of the Russian Federation, will have a certain degree of specificity in the production of procedural actions. A sign of this type of proceedings is the appearance of a special category of subjects of criminal procedural relations – close relatives of the deceased person, who can initiate further investigation of the criminal case and its consideration in court in order to rehabilitate the deceased suspect or accused. These subjects are involved in the plane of legal relations in connection with the presence of their “legitimate interest”, both of a property and non-property nature. A detailed study of the criminal procedure status of a person against whom the criminal prosecution was carried out, but he was not given the status of a suspect or accused, is due to the need to establish the circle of his close relatives. The effectiveness of this activity depends both on the successful interaction of the subject of the investigation with the body of inquiry and other state bodies, and on the legal regulation of the situation in criminal proceedings of close relatives and other interested persons of the deceased. The purpose of the study is to analyze the legal status of the deceased person not only at the stage of procedural verification, but also at the stage of preliminary investigation, as well as to suggest the ways to solve problems, related to the involvement of close relatives and other interested persons of the deceased in the investigation process, including through the use of various forms of interaction of the subject of the investigation with the body of inquiry and the state bodies. Methods: in the course of the study, the general and specific scientific methods were used, namely: comparative research, system analysis and logical-legal. Results: the paper analyzes the current regulatory regulation of the legal status of a deceased person during a procedural check before making a decision to refuse to initiate a criminal case, and provides a comparative legal analysis of similar legal provisions under the legislation of some foreign countries. The problems associated with the moment when it is necessary to obtain the consent of close relatives for making a decision in accordance with paragraph 4 of part 1 of the article are identified. 24 of the Code of Criminal Procedure of the Russian Federation, the directions and conditions of the activity of the investigative body in connection with the adoption of this decision are defined. It is indicated that the circle of related persons whose opinion needs to be clarified is not defined in the law. In this regard, it is proposed to rely on the position of the Constitutional Court of the Russian Federation and find out the opinion primarily of close relatives, the establishment of which depends on the successful application of various forms of interaction. Conclusions: the legislative recommendations are proposed to improve the legal status of a deceased person who has not yet been given the status of a suspect or accused, but in relation to whom the criminal prosecution was carried out. The paper analyzes in detail the activities of the investigation body to identify close relatives in order to clarify their opinion on the decision made in accordance with paragraph 4, part 1, Article 24 of the Criminal Procedure Code of the Russian Federation. The recommendations on the organization of interaction aimed at identifying the specified participants in the criminal process are given.

Constitutional Grounds of Exemption from Criminal Liability

2020 ◽  
Vol 5 ◽  
pp. 76-95
Author(s):  
Yu. E. Pudovochkin ◽  
◽  
N. V. Genrikh ◽  
Keyword(s):  
Russian Federation ◽  
System Analysis ◽  
Criminal Liability ◽  
Modern Science ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Legal Provisions ◽  
The Russian Federation ◽  
Methodological Principles

Problem statement. The leading trend in the development of the criminal law branch as a whole and its individual institutions, including the institution of exemption from criminal liability, is the constitutionalization of legal provisions and their enforcement practices. An important role in this process is played by the Constitutional Court of the Russian Federation, which by its decisions determines the constitutional foundations of the interpretation and application of criminal provisions. To date, a significant amount of information has been accumulated that defines the initial principles of regulation of legal relations related to exemption from criminal liability. However, highlighted problem is not properly analyzed in modern science. This sets out the need to generalize the practice of the Constitutional Court of the Russian Fede ration and to systematically present its legal positions that identifies the constitutionally significant content of the institution of exemption from liability. Goals and objectives of the study. To generalize, systematize and analyze the legal positions of the Constitutional Court of the Russian Federation on the problems of designing and applying the institution of exemption from criminal liability. Methods. A study of judicial practice is based on the use of classical methodological principles of complexity, comprehensiveness and subsidiarity. The method of system analysis, logical, documentary methods, analysis and synthesis are also applied in this article. Results, brief conclusions. The Constitutional Court of the Russian Federation legitimizes the institution of exemption from criminal liability, taking into account, inter alia, its following constitutionally significant characteristics: a decision on exemption from liability is not an act that establishes the guilt of the accused; such a decision can only be made with the consent of the person who committed the crime; disagreement of the accused with the possibility of applying other legal consequences of the termination of the criminal case to him, is tantamount to disagreement with the application of the institution of exemption from liability in general; if the accused does not object to the termination of the criminal prosecution, there is no reason to consider his rights and legitimate interests violated by the decision to terminate the criminal case; upon exemption from criminal liability, the state is not entitled to leave the interests of victims of crimes without protection.

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